Opinion
March 8, 1993
Appeal from the Supreme Court, Kings County (Pincus, J.).
Ordered that the order is affirmed.
Contrary to the defendant's contention, the Supreme Court properly denied his motion to vacate his conviction on the ground that he was denied the effective assistance of counsel. The record reveals that the defendant's trial attorney provided the defendant with meaningful representation by employing a mistaken identification strategy, which focused upon the three eyewitnesses' ability and opportunity to observe the defendant during the commission of the crime (see, People v. Satterfield, 66 N.Y.2d 796; People v. Baldi, 54 N.Y.2d 137). Although afforded an evidentiary hearing, the defendant failed to establish the absence of any legitimate or strategic reason for trial counsel's failure to call an individual who allegedly saw two masked men enter the grocery store. Moreover, since the three eyewitnesses unequivocally testified that they had an opportunity to observe the defendant's face during the attempted robbery, and that the defendant was not wearing a mask, the mistaken identification strategy utilized by trial counsel would not have been furthered by the introduction of evidence designed to attack the witnesses' credibility rather than their opportunity to view the perpetrators and the accuracy of their identifications.
Finally, we note that to the extent that the defendant's motion was based on a claim previously advanced on direct appeal, or upon facts appearing in the record which could have been raised on direct appeal, it was properly denied pursuant to CPL 440.10 (2) (see, People v. Cooks, 67 N.Y.2d 100; People v. Rossney, 186 A.D.2d 926; People v. Pachay, 185 A.D.2d 287; People v. Skinner, 154 A.D.2d 216). Mangano, P.J., Bracken, Eiber and Pizzuto, JJ., concur.